Roundup: 2nd, 7th, 9th and D.C. Circuits

NYC can't force retailers to display anti-smoking signs; School district violated rights of teacher with SAD; Settlement may not include charitable donations; Rules force online publishing of political ad contracts

New York City Mayor Michael Bloomberg is known for taking radical measures to help his city be healthy, but he came out on the losing side in the battle over graphic anti-smoking ads. In 23-94th St. Grocery Corp. et al. v. New York City Board of Health et al., the 2nd Circuit found that New York City can’t force tobacco retailers to display antismoking signs depicting diseased lungs, damaged brains or decaying teeth.

The signs were part of Mayor Bloomberg’s citywide anti-smoking campaign. But the plaintiffs in this case, which included Philip Morris USA and several other tobacco companies, along with two retail trade groups and two convenience stores, sued the city in June 2010, saying that the signs violated their rights. The city agreed to stop enforcing them until the courts reached a verdict.

In December 2010, U.S. District Judge Jed Rakoff said that only the federal government could impose such conditions on retailers, and that the city overstepped its bounds. On July 10, the 2nd Circuit upheld this ruling.

7th CircuitIllinois, Indiana, Wisconsin

School district violated rights of teacher with SAD

In its June 26 decision in Ekstrand v. School District of Somerset, the 7th Circuit recognized seasonal affective disorder (SAD) as a disability, ruling that a Wisconsin school district violated the rights of an elementary school teacher under the Americans with Disabilities Act (ADA) by not accommodating her SAD.

According to the lawsuit she brought under the ADA, Renae Ekstrand repeatedly talked to school officials, requesting that her class be relocated to a classroom with exterior windows. She also submitted a doctor’s note that said she needed to be exposed to natural light and blamed her windowless classroom as a major cause of her condition. The officials denied these requests. So Ekstrand’s doctor, along with her psychologist, recommended she take a leave of absence. Her leave was supposed to last only three months, but it ended up lasting through the school term and into the following one.

Ekstrand’s doctor testified that if she had a classroom with natural light, she could have returned to work after only a few months of absence. The school superintendent claimed he never got a doctor’s note. The 7th Circuit was not persuaded and upheld the district court’s jury verdict in favor of Ekstrand.

Donating to a food bank has nothing to do with false advertising, the 9th Circuit said on July 13 when it refused to approve a settlement in Dennis v. Kellogg Co. In the case, a class of consumers sued Kellogg for making claims that its Frosted Mini-Wheats cereal improves children’s attentiveness by 20 percent.

The parties agreed to settle, crafting a deal in which Kellogg would stop using the disputed claim in its advertisements, pay $2.75 million to class members and donate $5.5 million worth of food to charities that help feed the hungry. The 9th Circuit said the food donations weren’t adequately related to the issue at the heart of the lawsuit, which was false advertising. It would be more appropriate for the cereal company to donate to consumer protection groups, the court said.

“The settlement provides no assurance that the charities to whom the money and food will be distributed will bear any nexus to the plaintiff class or to their false advertising claims and therefore violates our well-established standards governing cy pres awards,” the court wrote.

DC Circuit

Rules force online publishing of political ad contracts

Money makes the world go round, and for television stations during election season, political advertisements are a cash cow. But the plaintive cries of the National Association of Broadcasters (NAB) that rules forcing broadcasters to publish political ad contracts online would cost them millions of dollars fell on deaf ears in the D.C. Circuit.

On July 27, in National Association of Broadcasters v. Federal Communications Commission, the court denied the NAB’s emergency motion to stop the rules from taking effect. The rules, which the Federal Communications Commission (FCC) adopted in April, force the four largest broadcasters—ABC, CBS, Fox and NBC—to upload files onto the FCC’s website that reveal who pays for political ads and how much they cost.

The NAB argued that these rules put big broadcasters’ cable and online competitors at an unfair advantage because the rules don’t apply to them. However, the D.C. Circuit wrote that the NAB had not met “the stringent requirements for a stay pending court review.” The rules went into effect on Aug. 2. Meanwhile, the NAB’s court challenge on whether the rules are constitutional and exceed the FCC’s authority still stands and will be debated on the merits.